Two events in2009 illustrates what happens when money and politics are involved with the selection of judges. The first is a case before the U.S. Supreme Court that mimics John Grisham’s novel, The Appeal, and the other is Gov. Ted Strickland’s appointment of two judges last week.
The reality version of The Appeal concerns Don Blankenship, chief executive officer of A.T. Massey Coal Co., who almost single-handedly changed the composition of the West Virginia Supreme Court by supporting Brent Benjamin against incumbent Chief Justice Warner McGraw. Blankenship started his quest after a jury rendered a $50 million verdict against Massey Coal in favor of Hugh Caperton and his company, Harmon Mining.
Blankenship contributed $2.5 million to a political action committee that viewed McGraw as too soft on crime and too dangerous for kids, and spent $500,000 on advertising. Altogether, Blankenship spent three times what Benjamin’s own committee spent. A year before the Massey case came before the court, Benjamin was seated as its new chief justice.
Caperton asked Benjamin to recuse himself, but he declined. Caperton’s case was dismissed by a 3-to-2 vote, with Benjamin being the swing vote. In petitioning review by the U.S. Supreme Court, Caperton claimed that Benjamin’s failure to recuse himself violated the due process clause of the 14th Amendment.
Twenty-seven former justices and chief justices from 19 states where judges are elected filed a brief in favor of Caperton’s position. About 35 other groups, including Common Cause, the American Bar Association and the League of Women Voters, have done the same. Ten current and former state supreme court justices filed a brief in support of Massey, among them, Ohio Supreme Court Justice Evelyn L. Stratton.
The 27 justices who supported Caperton cited the increasing expense associated with elections and the increasing level of independent expenditures in elections. They contend that Benjamin should have recused himself based on the appearance of impropriety.
We’ve seen in Ohio how independent groups and their money have become a powerful force in judicial elections. In the November 2000 elections, Citizens for a Strong Ohio, a group formed by the Ohio Chamber of Commerce, spent $4.4 million in judicial elections, much of it to denigrate Supreme Court Justice Alice Robie Resnick, who nonetheless was re-elected.
The justices who see no violation of due process argue that to recognize the “debt-of-gratitude” concern voiced by Caperton would mean creating a set of vague rules with no bright line. Judges are held accountable, they contend, through the election process and should retain their presumption of integrity.
That, however, is a fallacy. Except when an election involves a judge who has gained notoriety for especially bad behavior, the average voter has no clue about the judicial candidates.
Asserting that the integrity of judges should be presumed ignores human nature. The 27 justices who support Caperton acknowledge that financial support “can influence a judge’s future decisions, both consciously and unconsciously.”
The U.S. Supreme Court held that Benjamin erred by not recusing himself, but the court was divided on the issue. The real question is, why we do have a system that allows this kind of issue to arise? Judges should be appointed, and appointments should be based on merit.
The problem with appointments is that they give politics the chance to surface, which brings us back to Strickland’s appointment in 2009 of two relatively young government attorneys to fill vacancies on the Franklin County Court of Common Pleas.
Perhaps these appointees are gifted, but we cannot tell from what we read about them. The news releases said nothing about either appointee being blessed with great mental acumen or vast trial experience. We do not know if they have the proper work ethic or temperament.
In fact, we know only three things about them: They bring racial and gender diversity to the bench, both are Democrats and one has characterized her career as a “haphazard fusion of experiences.” Hardly the stuff that makes for great judges.
The bench should be reserved for the best and the brightest, for those who have the smarts, the experience and the fortitude. Minimum criteria exist for the practice of law. The same should hold true for judges. The process should be merit-based, conducted through appointment and with no regard for party affiliation. Call me a dreamer, but it can be done.
Regrettably, other priorities will take precedence over fixing our judicial system. Then again, so long as you’re not in court, I guess it doesn’t matter.
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